Ratio Juris

Publisher:: Wiley
Publication date:: 2021-02-01

ISBN:: 0952-1917

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Latest documents

Moral Failure and the Law
The recent “Windrush” scandal in the United Kingdom involved the application of law by Home Office officials in a manner that demonstrated gross lack of concern and humanity for its impact on many individuals. In an endeavour to reach some understanding of how ordinary individuals could have inflicted such hardships on others, this article considers the possible effect that acting within a legal environment might have on the actors’ response to moral norms. The inquiry leads to reconsideration of established theories on the relationship between law and morality, concluding that the main theories ignore important aspects of that relationship.
Integrative Jurisprudence: Legal Scholarship and the Triadic Nature of Law
What is the core of legal scholarship? How can we understand its relation to other disciplines, such as moral and political philosophy, sociology, and economics? I explore these questions by analysing the impact of the dual nature thesis. Criticising established theories of legal scholarship, I defend the ideal of an integrative jurisprudence. Integrative jurisprudence combines the two dimensions of law by employing analytical, empirical, and normative methods. I then discuss three objections and address the problem of how to bridge is and ought. In the course of my analysis of three different bridge theories, I ultimately further develop the dual nature thesis into a triadic nature thesis.
Fair Play, Reciprocity, and Natural Duties of Justice
In this paper, I respond to what is currently the most significant criticism of the principle fair play as a basis for political obligations. In a series of cases in which obligations appear to be established by fair play, important scholars contend that the moral principle at work is not fair play but a natural duty of justice to provide essential benefits to other people. Such natural duty accounts strikingly ignore requirements of reciprocity, to make appropriate return for benefits received. In addition, careful examination of possible natural duty explanations of such cases indicates severe difficulties explaining exactly to whom the natural duties in question are owed and why they may require significant costs.
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In Concreto Antinomies, Predictability, and Lawmaking
This paper investigates whether or not cases of in concreto antinomies (ICAs for short, also called indirect antinomies, accidental antinomies, normative conflicts due to the facts, predicaments, or paranomies) can be predicted. I distinguish two main theoretical positions: “Prodetection” argues that we can predict in concreto antinomies; “unpredictability” argues that we cannot predict them. I exemplify the two positions by relying on a disagreement found in the literature; then, after reviewing that disagreement, I (i) provide arguments for both positions; (ii) highlight the problematic issues for a definition of in concreto antinomy based on conceptual independence; (iii) point out some problems in Martínez Zorrilla’s threefold conception of normative conflicts; and (iv) advocate the need to introduce a case for “practically unpredictable” normative conflicts.
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Index to Volume 33 (2020)
Political Representation as Interpretation: A Contribution to Deliberative Constitutionalism
This article analogises political representation to legal interpretation. It then applies the analogy to the hitherto neglected question of what political representation means for deliberative constitutionalism. The upshot is a conception of deliberative constitutionalism that, while uncompromisingly grounded in the reasoned expression of the preferences of a polity's constituents through deliberative democratic institutional innovations, mandates representatives to translate those preferences into general and abstract constitutional law. It thus enhances the deliberative contribution of citizens in the determination of constitutional meaning, while preserving the value of representative institutions.
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Why a Hedgehog Cannot Have Political Obligations
According to Ronald Dworkin, political obligation is to be justified as an associative obligation through membership in certain political communities. In this regard, I first argue that the concept of an associative obligation cannot help us to account for precise moral obligations. Second, I analyze certain disanalogies between paradigmatic cases of associative obligation and political obligation in order to show the inability of the former to justify the enforcement of a comprehensive obligation such as the latter. Finally, I argue that Dworkin could not have provided a better argument: His theory of law makes him incapable of justifying political obligation.